Johnson v. Rankin
Filing
37
MEMORANDUM ORDER as to motion to quash; Tab A-l, Summary of Investigation.The Document behind Tab 1 constitutes the VSP's investigative summary, directed to Portsmouth Commonwealth's Attorney Earl C. Mobley. It is an evaluative summary cont aining the impressions of its authors concerning the evidence described. In addition, most of the factual material describedin the document is available in other, separately categorized materials. Accordingly, the VSP's motion to quash is grante d as to A-l, which will not be produced. Tab B-l, Portsmouth Police Department Reports A number of documents behind B-l concern investigative materials prepared by the Portsmouth Police Department. Because these materials were obtained from Portsmo uth Police Department, which has raised other objections to their production, the Courtdeclines to order their production from the VSP file pending argument on Portsmouth's separate motion. Tabs C-l through C-4, Crime Scene ExaminationThe four documents contained under the category "Crime Scene Examination", reflect objective analysis of the physical condition of the scene where the incident occurred. All of the information in document C-l through C-4should be produced, subject to the Protective Order. Tabs D-l through D-4, Lab Reports All of the documents in section D involve postmortem testing and examination of the decedent, Denyakin, no factor warrants withholding themand they will be produced subject to the Protective Order. Tabs E-l through E-6, Rankin Materials Materials in section E relate to the defendant, OfficerStephen Rankin, documents E-1 and E-5 will be produced subject to the protective order. Documents E-2 and E-6 will be produced subject to the prot ective order. Documents E-3 and E-4 may be withheld and VSP's motion to quash is granted in part with respect to E-3 and E-4. Tabs F-l through F-3, Denyakin Materials The materials in section F also relate to the decedent,Kirill Denyakin. F-l is a report concerning the investigator's review of video footage from security cameras near the scene. F-2 contains a search warrant and return for records related to the emergency medical treatment by those who responded to the incident. The third document, F-3, is a summary of informationobtained from Immigrations and Customs Enforcement concerning Denyakin's immigration status. These documents present purely factual data. Although the report of video evidence in F-2 contains the i nvestigator's observations of a person believed to be Denyakin, they amount to only a description of his physical condition without subjective characterization. In addition, thevideo evidence itself is available in the event any party disagrees with the investigator's characterization. The report contains useful time-stamped data concerning Denyakin's suspected appearance in the footage and it, along with the other two factual documents in section F, will be produced subject tothe Protective Order. Tabs G-l through G-23, Witness Interviews. Documents in section G include summaries of witness interviews conducted by VSP's Chief Investigator between May 5 and May 31, 2011. The witness statements with the witnesses' dates of birth and phone numbers redacted shall be produced subject to the Protective Order. Tabs H-l through H-20, Police Statements. H-l through H-20 will be produced, subject to the Protective Order. Tabs 1-1 through 1-6, Chain of Custody and R equest for Examinations, they will also beproduced subject to the terms of the Protective Order. Tabs J-l through J-16, Audio/Video and Other Evidence. The evidence included in the J-l through J-9 be produced subject to the terms of the Protective Order. The VSP's motion to quash is granted with regard to J-10. The VSP's motion to quash isgranted with respect to J-ll and J-12. J-13, J-14, J-15, J-16 and J-17 must be produced subject to the Protective Order. Tabs K-l through K-5, Additional Material, the undersigned declines to order the production of any of the documents addressed in K-l through K-12. Subject to the terms of the Protective Order entered this day, the undersigned directs the VSP to produce the foregoing mate rials to Plaintiff's counsel within ten (10) days of thisOrder. Costs for copying and duplication shall be paid by Plaintiff's counsel. The materials submitted for in camera review may be retrieved from chambers by the VSP for use in making necessary copies. Signed by Magistrate Judge Douglas E. Miller and filed on 11/7/11. (jcow, )
UNITED STATES
FOR THE
DISTRICT
COURT
EASTERN DISTRICT OP VIRGINIA
Norfolk Division
JERRELL R.
JOHNSON,
Administrator of
The Estate of Kirill Denyakin,
Deceased,
Plaintiff,
ACTION NO.
v.
STEPHEN D.
2:llcv415
RANKIN,
Defendant.
MEMORANDUM ORDER
This
Quash
a
Police
matter
subpoena
is
duces
("VSP").
records
death
his
underlies
of
a
the
in
Johnson
alleges
VSP's
prior
motion
produced
for
Order
and
ordered
in camera
VSP
that
(ECF No.
(ECF
No.
by
32)
non-party
R.
Denyakin
officer.
Motion
Virginia
into
("Johnson")
the
Stephen
shooting
D.
Johnson's
Rankin
of
to
State
("Denyakin"),
investigation
Officer
a
Johnson
Defendant,
the
used
which
Rankin
subpoena
incident
excessive
28-6).
the
documents
review.
resolve
investigation
against
the
to
Jerrell
police
from
force against Denyakin.
By
filed
VSP's
claims
materials
Court
Kirill
Portsmouth
requested
which
tecum
decedent,
Johnson's
("Rankin"),
the
Plaintiff,
subpoenaed
of
before
Court
denied
responsive
On
October
to
24,
in
the
part
the
subpoena
2011,
VSP
produced
the
materials
in
two
binders
which
the
Court
has
reviewed in detail.
The
objections
governmental
ongoing
or
intended
opinions,
F.R.D.
the
focus
process,
618,
is
620
Rhodenizer v.
WL 3334744
{E.D.
arguing
ten
factors
(E.D.
Fourth Circuit,
cases
of
(4th
Va.
the
Cir.
Richmond
motion
described
Pa.
1973).
and
in
983
1993)
F.3d
not
(unpublished).
or
purely
[but]
disclosed.
Id. ;
3:09cv306,
2009
both parties
v.
Rizzo,
59
rely
are widely
privilege.
(text
Castle,
in Westlaw)
142
the
followed
Cruz
F.R.D.
on
F.R.D.
explicitly adopted by
factors
(table)
Because
memoranda
No.
Frankenhauser
investigative
1055
Jallah,
(unpublished).
opposition,
Though
is
the process
material
be
The
deliberative
apply after
must
an
advisory
omitted).
the
a
barring
Castle v.
of
Police Dept.,
2009)
by
reflecting
deliberative
the Frankenhauser
or
process
factual
generally
October 14,
governmental
Supervisors,
2667
context"
City of
In
344
its
disruption
in
of
privilege,
1992)(citations
contained
result
charges.
documents
"compiled
of
executive
called
generally doesn't
Also,
from
Va.
a
claim
criminal
and deliberations."
preventing
material
severable
possible
its
as
decision-making
(E.D.
on
involved
privilege
"intragovernmental
concluded.
339,
the
the privilege
factual
VSP
sometimes
recommendations
142
the
into
protect
of
by
enforcement
privilege,
to
disclosure
of
law
investigation
governmental
is
raised
v.
Bd.
1993
at
in
WL
621-
22;
Rhodenizer,
that
claims
"balance
of
the
governmental
obtain
[his]
2009
data,
WL
3334744
governmental
public
cause of
Frankenhaus er
instructs
the
Court
of
a
factors
F.R.D.
to
at
guide
of
litigant
him with which
59
to
confidentiality
need
to
Frankenhauser,
ten
require
the
the
available
suggested
Frankenhauser
in
against
otherwise
action."
*3.
privilege
interest
information
not
at
to
to
pursue
344.
the
necessary
balancing:
1.
The
extent
to
governmental
giving
2.
The
The
processes
government
impact
having
3.
the
which
upon
consequent
to
by
persons
which
program
will
discouraging
thwart
citizens
from
information;
their identities
degree
disclosure
who
have
given
information
of
disclosed;
governmental
improvement
self-evaluation
will
be
chilled
and
by
disclosure;
4.
Whether
the
information
sought
is
factual
data
or
evaluative summary;
5.
Whether
or
the
party
potential
defendant
either pending or
incident
6.
seeking
the
in
reasonably
discovery
any
is
criminal
likely
to
an
actual
proceeding
follow
from
in question;
Whether the police investigation has been completed;
the
7.
Whether
any
proceedings
intra-departmental
have
arisen
or
may
suit
is
disciplinary-
arise
from
the
non-frivolous
and
investigation;
8.
Whether
the
brought
9.
plaintiff's
in good faith;
Whether
the
information
sought
is
available
other discovery or from other sources;
10.
The
importance
plaintiff's
Id.
of
Like
an
under
this
case,
of
the
of
investigative
dispositive
of
the
discovery
of
Court's
Court
witness
involved
shooting.
review had concluded when
the
information
Frankenhauser
officer-involved
factors,
the
this
and
10
all
nor
brought
of
which
following
See
case,
favor
in
analysis.
the
statements,
was
the
Castle,
close-in-time
the
Court
faith.
compiled
incident
142
to
the
F.R.D.
is
at
statements).
621
As
as
Id.
court
factor
observes
was
each
were
that
suit
after,
(recognizing
most
ordered
not
of
entitled
of
the
to
police
at 345.
available
the
out
investigation
excerpts
information
not
arising
Considering
well
immediately
-
the
that
Johnson's
The
claim
plaintiffs
as
first
production.
bad
sought
Frankenhauser
material,
found
a
Although
reports containing purely factual data.
In
and
case.
disclosure
ten
through
factors
is
not
sought
or
from
the
complete
in
8,
9,
frivolous
nearly all
the
other
month
sources.
importance
factual
of
record
of
what
happened
information
to
the
both
night
the
Denyakin
plaintiff
died,
and
the
the
importance
defendant
of
the
cannot
be
overstated.
Conversely,
decision
factors
has
been
Portsmouth,
by
departmental
noted
days,
but
that
has
opposed
mention
ongoing.
expected
it
a
that
Court
all
or
nearly
all
previously
makes
confirms
In
its
on
officials
material
the
of
all
entered
its
yet,
no
VSP
of
the
material
intra-
within
requested
a
It
in
also
the
the
ten
copy
Federal
file.
No
and
response,
prosecution
the
of
agency
bears
file
was
some five months ago.
foregoing,
Protective
following
initial
had
As
charges,
that
in
2011,
the
non-disclosure.
criminal
for their own purposes.
Considering
the
favor
decision
Federal
gathered in April and May,
of
both
filings,
is
releasing
that
7
regarding
separate
noted
the materials
and
made
inquiry
VSP
6
findings
and
subject
Order
and
(ECF
to
No.
rulings
on
the
terms
36),
the
the
VSP's
motion to quash:1
Tab A-l,
The
Summary of Investigation
Document
investigative
Attorney Earl
the
behind
summary,
C.
impressions
directed
Mobley.
of
Tab
its
It
is
an
1
to
constitutes
Portsmouth
evaluative
authors
the
Commonwealth's
summary
concerning
VSP's
the
containing
evidence
'in addition to the contents of its investigative file, the VSP produced an
index of its contents which it attached as an exhibit to the publically filed
memorandum. (ECF No. 28-6).
This Memorandum Order addresses
reference to tab numbers set forth in that exhibit.
the contents by-
described.
in
the
In
addition,
document
materials.
to A-l,
is
most
of
available
Accordingly,
the
in
number
materials
reports
of
the VSP's motion
documents
prepared
were
Department
by
the
separately
has
filed
these materials were
behind
declines
to
argument
on
order
subpoenaed
its
own
The
Portsmouth's
four
condition
of
material
as
the
includes
video
scene.
granted as
does not
to
Portsmouth
Police
to
disclosure.
from
Because
Police Department,
their production,
contained
reflect
scene
the
the
photographs,
of
the
documents
dependent
production will
it
any
under
objective
where
Accordingly,
impact
These
VSP
the Court
file
pending
separate motion.
incident
location
contain
upon
have
the
category
analysis
drawings
impact on confidentiality,
process
Department.
the
objections
investigative
Crime Scene Examination
evidence
These
Police
and
production
documents
Examination",
concern
obtained from Portsmouth
their
Tabs C-l through C-4,
other
categorized
to quash is
B-l
Portsmouth
which has raised other objections
the
separately
described
Portsmouth Police Department Reports
A
well
other,
material
which will not be produced.
Tab B-l,
Scene
factual
and
of
purely
of
the
"Crime
physical
occurred.
This
measurements,
items
recovered
factual
data,
as
from
which
or any intra-departmental
citizen
no
intra-departmental
or
chilling
officer
effect,
disciplinary
or
input.
nor would
proceedings.
While
public
decision
the
disclosure
making
Protective
conclude.
process,
Order,
All
of
of
testing
and
observed
become
the
at
the
documents
the
discovery
in
the
in
this
in
impact
the
stage,
subject
to
deliberative
the
process
to
document
C-l
through
C-4
Protective Order.
section
of
the
the
autopsy
public
this
confidentiality
documents.
to
at
might
Lab Reports
hearing,
of
permit
information
examination
part
seeking
other
the
information
disclosure
subject
through D-4,
All
such
will
the
should be produced,
Tabs D-l
of
is
interest
Accordingly,
report
In
postmortem
Denyakin.
As
has
already
somehow
addition,
Denyakin's
is
no
involve
decedent,
record.
case
D
the
was
person
Administrator.
implicated
by
factor warrants
No
production
withholding
of
them
and they will be produced subject to the Protective Order.
Tabs E-l
through E-6,
Materials
Stephen
do
section
of
summaries
E
Two
Rankin.
summaries
The
in
Rankin Materials
these
of
statements
do
not
relate
Rankin
contain
to
the
documents,
gave
during
questions
by
they contain any evaluation or comment
Rankin
was
statements,
represented
and
although
intra-departmental
critical
importance
by
the
an
of
these
any
Officer
E-l
and
the
investigation.
E-5,
are
investigator,
on Rankin's
attorney
nor
testimony.
when
giving
the
is
still
ongoing,
and
proceedings
may
arise,
the
investigation
disciplinary
defendant,
close-in-time
statements,
their
purely
factual
interest
nature,
weigh
in
produced subject
Document
Report
statement.
to
is
or
deliberation
produced subject
a
seal
in
by
the
the
two
materials
Denyakin.
review
of
video
contains
the
a
emergency
The
from
any
confidentiality
them.
They
will
be
Police
mentioned
a
press
by
inquiry
documents
the
Department
involve
evidence
and
Incident
Rankin
in
shortly
any
his
after
evaluation
they
will
be
documents,
warrant.
E-3
and
This
Court.
is
issued
by
documents
granted
in
under
contained
conclusions
these
quash
was
execution
information
investigative
to
concern
warrant
The
Accordingly,
motion
E-4,
the
may
part
be
with
and E-4.
Kirill
obtained
these
represents
Tabs F-l through F-3,
F-2
of
the Protective Order.
VSP's
to E-3
incident.
involves
of
officer.
and
The
arrest
Portsmouth Circuit
requesting
withheld
Portsmouth
E-6
search
warrant
respect
to
absence
disclosing
concerning
remaining
Facebook
of
prior
Neither
the
Protective Order.
a
a
Document
incident.
of
the
to
the
The
favor
E-2
relating
and
Denyakin Materials
in
F-l
section
is
footage
a
from
relate
concerning
security
third document,
by
F-3,
and
those
is
a
Customs
8
to
the
cameras
and return
treatment
Immigrations
also
report
search warrant
medical
F
for
who
the
decedent,
investigator's
near
records
the
related
responded
summary
of
Enforcement
scene.
to
to
the
information
concerning
Denyakin's
factual
data.
contains
be
immigration
the
Although
they
condition without
evidence
disagrees
with
contains
amount
the
to
only
is
a
video
of
evidence
of
characterization.
in
in
F-2
a person believed
description
available
purely-
his
physical
In addition,
the
event
to
any
the
party
characterization.
The
time-stamped
data
Denyakin's
useful
factual
of
present
investigator's
suspected appearance
two
report
documents
observations
subjective
itself
These
the
investigator's
Denyakin,
video
status.
in
documents
the
in
concerning
footage and it,
section
F,
will
along with
be
produced
report
the other
subject
to
the Protective Order.
Tabs G-l through G-23,
Documents
interviews
and May
form,
brief
section
conducted
31,
and
in
2011.
do
not
written
by
in
a
the
by
VSP's
include
of
first
statements
are
apparently
summarize
the
or
summaries
Investigator
statements
circumstances
(as
of
though
between
May
questions,
of
5
only
a
the
interview,
statements
by
to
investigator's
witness
witnesses'
the
subscribed
of
are prepared on a VSP
investigator's
summary
person
sworn
include
Chief
the
the
narrative
not
G
The witness
description
followed
Witness Interviews
by
the
witness).
the
The
witnesses,
conversation
with
but
each
one.
The
undersigned
cooperating
witnesses
recognizes
is
an
that
protecting
important
factor
to
the
identity
consider
of
prior
to
ordering
case,
disclosure
the
VSP
of
voluntarily
identifying each witness
of
the
protection
statements.
While
identified,
sources,
after
the
brief
the
most
their
the
of
whose
the
be
is
the
also
statements
numbers
redacted
to
may
shall
be
leads
the
form,
most
the
witnesses'
be
produced
summary,
the
available
less
relevant.
dates
subject
their
from
other
a
month
Moreover,
Court
by
much
witnesses
than
fresh.
this
obviates
with
is
witnesses
in
withholding
taken
were
be
with
disclosure
that,
were
redacted
might
witness
sought
however,
attachment
from
true
memories
inconvenience
testimony
gained
statements
in
the
This
statements
when
disclosure,
minimize
produced
information
of
statements,
by name.
to
it
incident
nature
witness
the
conclude
that
to
likely
to
greatly
identifying
the
Accordingly,
of
to
few
the
birth
and phone
the
Protective
Order.
Tabs H-l through H-20,
Like
implicate
civilian
concerns
governmental
departmental
over
statements,
confidentiality,
disciplinary
identifying
investigation.
already
witness
self-evaluation
investigation.
have
Police Statements
However,
those
As
been
likely
proceedings
many
specific
with
and
of
identified
which
these
officers
civilian
the
10
the
statements
chilling
impact
may
effect
on
arise
of
disclosed
intra-
the
relate
concerns
all
on
from
to
participating
witnesses,
in
police
the
in
the
officers
index.
In
addition,
Rankin
officers,
the
himself
who were
scene.
As
identified
interviewed as
with
civilian
a
narrative
prompts
investigator.
night
of
between
marked
the
Denyakin's
the
officers
with
a
the
these
nor
favor
1-1
but
and
involve
other
document
summary
factual
and
witness
the
statements
is
neither
Police."
information
purely
on
encounters
State
the
the
other
on
contains
Virginia
of
or
events
interview
importance
of
statements
questions
the
subject
1-6,
officer
describe
the
many
their presence
the
Each
"This
the
production
through
some
of
of
without
Most
conclusions
H-20 will be produced,
Tabs
fashion,
stating
case,
result
Denyakin.
circumstances,
Plaintiff's
documents,
and
legend
recommendations
Under
death,
discovery
statements,
are presented in a
from
in
nature
of
H-l
to
the
through
to the Protective Order.
Chain
of
Custody
and
Request
for
Examinations
Documents
request
for
elsewhere
1-1
through
examinations
in
this
for
and
the
warranting
produced subject
to
factual
evidence
material
the
in
the
factual
data
and
custody
already
documents
do
nondisclosure.
of
not
They
described
are purely
present
will
and
any
also
of
be
the Protective Order.
Audio/Video and Other Evidence
behind
compiled and
chain
These
nature
the terms of
Tabs J-l through J-16,
The
are
Memorandum Order.
administrative
concerns
1-6
Tab
J
include
copied onto CDs
11
mostly
and DVDs.
The
electronic
electronic
evidence
of
J-l
the
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citizen
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included
terms
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the
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is
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produce
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Tabs K-l through K-5,
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source
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information
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during
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14
of
appears
of
other
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copies
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addressed in K-l
contained
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Additional Material
the
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documents
Subject
day,
the
the
undersigned
materials
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to
to
of
the
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directs
the
VSP
Plaintiff's
Costs
Plaintiff's
terms
for
counsel
copying
counsel.
review may be retrieved
The
and
to
within
Order
produce
ten
duplication
materials
the
(10)
the VSP
of
be
for
.in
for use
in
United Slates Magistrate Judge
Norfolk,
Virginia
November
7,
2 011
15
E.
MILLER
STATES
MAGISTRATE
by
camera
Douglas E. Miller
DOUGLAS
this
paid
making necessary copies.
UNITED
this
foregoing
days
shall
submitted
from chambers by
entered
JUDGE
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